Frequently Asked Questions About Estates

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UPDATE: Information on the Estate Administration Tax

Anyone who applies for a Certificate of Appointment of Estate Trustee on or after January 1, 2015 is required to file an Estate Information Return with the Ministry of Finance. This does not apply to applications for Certificate of Appointment as Succeeding Estate Trustee or Certificate of Estate Trustee during Litigation. Learn more

This Estate Information Return must be received by the Ministry of Finance within 90 calendar days after the Certificate of Appointment of Estate Trustee has been issued. Mail the completed return to the Ministry of Finance at the address indicated on the return. Do not file the Estate Information Return with the court.

Visit www.ontario.ca/estateadmintax for information on the Estate Administration Tax, Questions and Answers or to download the Ministry of Finance Estate Information Return and its accompanying guide.

General Questions

How can I find a copy of a deceased person's will?

Where a deceased has left a will and the deceased's
personal representative has filed an application for a
certificate of appointment of estate trustee with a will at the
Superior Court of Justice, any person may inspect the file and
obtain a copy of the will upon payment of the prescribed fee,
unless a judge of the court has ordered the file sealed. The
application is filed at the court location in the county or
district where the deceased resided.
Fees payable to access a court file and to obtain a photocopy of
a filed document may be viewed on the Ministry's website at:
http://www.attorneygeneral.jus.gov.on.ca/english/courts/default.asp#fees.

For information on death benefits, you may contact Human Resources and Skills Development Canada (HRSDC) at 1-800-277-9914, delivered by Service Canada. An operator will be able to refer you to your local HRSDC branch and provide you with more information on death benefits.

Where do I file an application for "letters probate" or
"letters of administration"?

An application for "probate" (now called a
certificate of appointment of estate trustee with a
will) or "administration" (now called a
certificate of appointment of estate trustee without a
will) is filed at the Superior Court of Justice located
in the county or district where the deceased had his or her
permanent residence.
If the deceased had no permanent residence in Ontario, the
application is filed at the Superior Court of Justice in the
county or district where the deceased's property is located. A
list of court addresses may be found at: http://www.attorneygeneral.jus.gov.on.ca/english/courts/cadaddr.asp.

How do I calculate the amount of the estate administration
tax?

The estate administration tax is calculated on the
total value of the deceased's estate wherever situated, that is
sworn/affirmed to on the application for a certificate of
appointment of estate trustee under "Value of Assets of Estate".
The formula for calculating the amount of the tax is set out in
the Estate Administration Tax Act, 1998 as follows:

$5 for each $1,000, or part thereof, of the first $50,000
of the value of the estate, and

$15 for each $1,000, or part thereof, of the value of the
estate exceeding $50,000.

The following chart lists the estate administration tax payable for estates valued between $1,000 and $5 million. Round the value of the estate up to the nearest thousand to see the amount of tax payable.

Do court estate documents for filing have to be
typewritten?

The certificate of appointment of estate trustee
must be printed and typewritten. This ensures that there is no
question about the content of a certificate of appointment of
estate trustee that is issued by the Superior Court of
Justice.

Other court estate documents may be handwritten, so
long as (1) they are legible, and (2) a printed copy of the form
in accordance with the required format is used.

All court documents whether printed, typewritten or
written must meet the requirements of the Rules of Civil
Procedure relating to the standards for format. This
includes spacing, margins, print size and quality of paper.

My spouse has died. What does it mean to make an election under the Family Law Act?

In law, an election is a legal decision or choice. When a married spouse dies and has left a will, the surviving spouse can make an election to receive:

A surviving spouse has six months from the date of the spouse’s death to make an election. If an election is not made within six months, the spouse will be granted his or her entitlement under the will, or under the Succession Law Reform Act if there is no will.
The election has important impacts on the rights of the surviving spouse. Surviving spouses should seek legal advice before making an election.Learn more about property division following the death of a spouse.

How do I file an election under the Family Law Act?

If you decide to make an election (see question above), the election must be filed in-person or by mail with the Estate Registrar for Ontario within six months of the spouse’s death. To file an election, complete the form shown here and send to:
Estate Registrar for Ontario
c/o Toronto Estates Office
Superior Court of Justice
330 University Ave
Toronto ON M5G 1R7
If you have any questions about filing an election, please call the Estate Registrar for Ontario at 416-326-2940 or toronto.estates@jus.gov.on.ca. (Please note that elections may not be filed by email.)

Definitions

What is a bond?

A bond protects the beneficiaries and creditors of
the estate in the event of improper administration of the estate
assets. It is posted with the court by the estate trustee as
security for the collection, administration and accounting of the
assets of the deceased's estate. A bond is required under the
Estates Act and the Rules of Civil Procedure in three
situations (with certain limited exceptions):

Before an estate trustee obtains a certificate of
appointment of estate trustee without a
will;

Before an estate trustee obtains a certificate of
appointment of estate trustee with a will
where the estate trustee is not named in the will; and

Before an estate trustee obtains a certificate of
appointment of estate trustee with a will
where the estate trustee is named in the will but is not
resident in Ontario, or in a province or territory of Canada,
or in a Commonwealth country.

What is a surety?

There are two types of surety: (1) a
personal surety who makes him or herself personally
responsible for payment in the amount of the bond should the
estate trustee fail to properly administer the assets of the
estate; and (2) an insurer licensed in Ontario
to write surety and fidelity insurance who acts as surety and who
provides a bond for a fee.

A personal surety must be an
Ontario resident and cannot be a minor or a solicitor. Two
personal sureties are required where the value of the estate is
more than $100,000. One personal surety is required where the
value of the estate is $100,000 or less. The Estates Act provides
that the amount of the bond shall be double the amount or value
of the estate.

What is the estate administration tax?

The estate administration tax has replaced probate
fees since December 1998. The tax must be paid when the personal
representative files an application for a certificate of
appointment of estate trustee with the Superior Court of Justice.
There are no other court fees payable for filing the application.
Cheques for paying the estate administration tax are made payable
to the Minister of Finance.

In certain circumstances, the estate administration
tax paid may be calculated on an estimated value of the estate.
In these circumstances, the personal representative must:

File an affidavit as to the estimated value of the
estate;

Pay the estate administration tax on the estimated value;
and

Provide an undertaking to file, within six months, a
sworn/affirmed statement of the total value of the estate, and
to pay the balance of any additional tax owing (if any).

On an order of a judge, in accordance with the
criteria set out in the Estate Administration Tax Act,
1998 (including the posting of a bond), payment of the
estate administration tax may be deferred to a specific date and
the certificate of appointment of estate trustee may be
issued.

What is a certificate of appointment of estate trustee?

A certificate of appointment of estate trustee
with a will is a document issued by the court
that proves the authority of the estate trustee (formerly called
an executor) to administer the provisions of the
deceased's will.

A certificate of appointment of estate trustee
without a will is a document granted by the
court that gives authority to the estate trustee (formerly called
an administrator) to manage and distribute the
estate of the deceased who died without having made a will.

Learn More about the 'Certificate of Appointment of Estate
Trustee'

Is it necessary to obtain a certificate of appointment of
estate trustee in all cases?

No. It depends upon the type and nature of the
estate assets to be administered, including whether or not the
deceased had a will. A lawyer is in the best position to provide
legal advice about whether or not it is necessary to obtain a
certificate of appointment of estate trustee.

Can court staff give me advice about filing an application
for a certificate of appointment of estate trustee?

Neither the Attorney General nor Ministry officials
including court staff have the authority to provide legal advice
or to comment on private legal matters. A lawyer is in the best
position to give advice about legal rights and responsibilities
in relation to estate matters.

If you wish to retain an Ontario lawyer, you can contact the Lawyer Referral Service operated by the Law Society of Upper Canada. The Lawyer Referral Service will provide the name of a lawyer in your area, who provides a free consultation of up to 30 minutes. The Lawyer Referral is available by telephone only at 1-800-268-8326 (or in the Greater Toronto Area at 416-947-3330). If you are calling from outside the province, you can reach the Lawyer Referral Service by dialing 1-416-947-3330. Advise the operator that you are calling from outside the province. A half-hour consultation is not guaranteed if you do not have an Ontario phone number. The Law Society of Upper Canada also maintains a list of lawyers in Ontario and their contact information, which may be accessed through the Law Society of Upper Canada website at: www.lsuc.on.ca.

How can I avoid making common errors when applying for a certificate of appointment of estate trustee?

The following document provides a list of common errors and gives tips on how to avoid them when applying for a certificate of appointment of estate trustee with or without a will.

What is the role of court staff in processing an application
for a certificate of appointment of estate trustee?

Applications for certificates of appointment of
estate trustee are processed by Ministry of the Attorney General
court staff who perform the duties of an estate registrar in the
Civil Office of the Superior Court of Justice. These duties are
prescribed by law. Staff must review each application to confirm
that the application and all accompanying documents are complete
and comply with the Rules of Civil Procedure (the rules
of court) and other applicable legislation.

If staff have concerns about the application or
accompanying materials, the application must be referred to a
judge for direction. The judge may require further materials to
be filed or steps taken by the personal representative in
relation to the application. The Rules of Civil
Procedure may be found at the following website:
http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_900194_e.htm.
The Rules applicable to estates are rules 74 and
75.

Where can I obtain an application form for a certificate of
appointment of estate trustee either with a will or without a
will?

What is the Ministry of the Attorney General doing to ensure
that the time taken for issuing certificates of appointment of
estate trustee is consistent across Ontario?

The Ministry has a province-wide standard of 15
business days for processing certificates of appointment of
estate trustee with or without a will, once the application and
accompanying materials are complete and judicial direction, if
required, has been obtained.

What if I do not know whether or not an application for a
certificate of appointment of estate trustee was filed or if I am
not sure in which court office the application was filed?

You may contact the civil office of the Superior
Court of Justice (in Toronto, the Estates Office) located in the
county or district where the deceased had his or her permanent
residence in writing, to request that a search for the estate
application file be conducted. If you are not sure of the court
location where the application for a certificate of appointment
of estate trustee may have been filed, you may contact the civil
office at any Superior Court of Justice location in writing to
request that a provincial search for the file be conducted.

You should provide the deceased's full name, address
and date of death. You will be advised of the appropriate fee
that is payable for the search and for any copies of filed
documents. Court office addresses may be found at: http://www.attorneygeneral.jus.gov.on.ca/english/courts/cadaddr.asp
Court offices may not be contacted by e-mail.

If no application for a certificate of appointment
of estate trustee is found, you may wish to contact a lawyer who
will be able to give you the appropriate advice in the
circumstances.